Section 49 reports

Provided for by s.49 of the Mental Capacity Act 2005, these reports are ordered by the Court for an independent opinion into an element of a person’s condition, care or treatment at no charge.

The volume of requests for these reports has in recent times increased quite dramatically and a large number of NHS trusts in particular are experiencing difficulties in managing these requests which are a further drain on already scarce resources, particularly when the author of the report is required to assess the patient.

The question is should NHS trusts have to just accept that this is the way things are and complete every request to provide a report that they receive, or can this order be challenged?

The Court considered a challenge made by an NHS Trust to an order made directing them to prepare a section 49 report in the case of RS -v- LCC and ors [2015] EWCOP 56. In this case the judge dismissed arguments put forward by the NHS Trust that it should not be required to provide a report and confirmed the wide ranging power of the Court to order reports.

However, the judge highlighted that each case must be looked at on its facts and recognised the difficulties that section 49 can cause for NHS trusts:

‘27….. this is a difficult and recurring problem and brings into sharp focus the burden upon any trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the trust. There is no provision within section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere.;

Whilst the judgment at first blush may give the indication that NHS trusts must comply with requests for section 49 reports, the Court made it clear that this decision was made on the very specific facts of this case and each future case should be considered on its own merit.

It is important to remember that where a report is directed to be provided pursuant to s.49 the Court must exercise its power under section 49 reasonably and pursuant to the relevant Rules and Practice Directions (see below). It must also take into account all factors that are relevant in respect of the case before it.

Practice Direction 14E Pilot has recently been published in draft form and is expected to come into force in June 2016. The Pilot sets out a list of factors which the Court may consider when deciding whether to order a section 49 Report. These importantly include consideration of whether the trust has recent knowledge of the person who is the subject of the proceedings or should have knowledge due to their statutory responsibilities and the role, if any, the trust may have in respect of the decisions which the Court is being asked to make.

Where a health body is not involved with the person who is the subject of the proceedings, the use and certainly the routine use, of orders requiring section 49 reports against health bodies is arguably inconsistent with the new Practice Direction and the purpose of s.49.

Top Tips

  1. When you receive a request to provide a section 49 report you have seven days to nominate someone to complete the report and notify the Court of this.
  2. Check whether the subject of the report is someone you are currently providing services to – if not consider whether you are the right body to be providing the report.
  3. If you do decide to provide the report then the nominated person is able to examine and take copies of:
  • Any health records;
  • Any social care records; and
  • Any care records.
  1. Don’t be afraid to question whether it is appropriate for your trust to provide the report but remember if you want to challenge this you need to do so without delay.

We have successfully challenged orders directing NHS trusts to provide reports under section 49 whereby the NHS trust has not had to provide any report or alternatively the scope of the report has been significantly reduced.

Case Management Pilot

This is currently in draft form and expected to come into effect in June 2016. The pilot scheme sets out three case management pathways for Court of Protection proceedings:

  1. a Property and Affairs pathway;
  2. a Health and Welfare pathway; and
  3. a hybrid pathway for cases that have elements of both Property and Health.

Importantly the Practice Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case. It is hoped that this will prevent aimless applications being made as there will be a requirement for all issues to be identified at the earliest opportunity in proceedings.

More robust case management decisions should be taken at the outset. Early resolution of cases is to be encouraged to reduce the number and length of hearings required in contested cases and to promote judicial continuity.

Whilst it is hoped that this pilot will streamline cases, there is the risk that the Court will be encouraged to penalise parties who do not comply with the directions set which may see an increase in orders for costs being made. This is something to be vigilant about, particularly for NHS bodies who would clearly wish to avoid being subject to costs orders.

The pilot is expected to run for up to 12 months.

Transparency Pilot

If an NHS trust or CCG is involved in any proceedings before the Court of Protection then it is important to be aware of this pilot as it may result in their details being publicised in media reports in respect of cases before the Court of Protection.

It is not known what the outcome of the pilot will be and whether this will result in more media access and information being made available to the public in respect of the decisions made by the Court of Protection. The pilot appears to have been developed on the back of comments from the media about this being a ‘secret court’ perhaps raising the public’s general inquisitiveness as to what happens in the Court. The fact is that this Court makes decisions about very private aspects of people’s lives at a time when they are probably at their most vulnerable so perhaps the question that should more appropriately be asked is why those decisions should be publicised?

This debate will almost certainly continue and your feedback and experiences are really important. If you wish to share your point of view regarding this, or any of the other featured pilots, then please contact [insert details of where they can send information]

FAQs

Which areas will participate in the Court of Protection transparency pilot?

All courts that hear Court of Protection cases in England and Wales.

How long will the pilot run for?

Will all Court of Protection hearings be held in public now?

No. This will depend on whether the court has made an order for a public hearing or the rules provide for there to be public hearing. Most cases covered by the pilot (and so those in which orders for hearings are made on and after 29 January 2016) will be in public with reporting restrictions.

Who is able to attend Court of Protection hearings held in public?

In addition to the parties, the general public or press will be able to attend hearings held in public. They will be asked to sign a document recording their attendance and confirming that they are aware of the terms of the pilot order. If they refuse to sign, the judge may exclude them from the hearing. In addition, in some cases the judge may change or vary an order that the hearing is to be in public, or exclude certain people from attending, for example, to limit attendance to accredited media.

Will the media give the Court prior notice of their attendance?

There will be no requirement for the media to give advance notice of intention to attend proceedings.

Will members of the press be able to make an application if no pilot order is made on the case to have this overturned?

Yes. The media can make an application at any time about attending a private hearing or about what information about the proceedings may be published. To make an application, the applicant must make an application within proceedings on form COP9 application notice along with a COP 24 witness statement.

Will the parties to a case be able to challenge the decision to hold the hearing in public or ask for additional reporting restrictions to be imposed?

Yes. The court, either on its own initiative or on an application, may make a further order changing the pilot order. To make an application, the applicant must file forms COP9 and COP24, as above.

In addition, the person who has made the application must give notice of their application to the national media by using the Press Association’s Injunctions Alert service (formerly known as CopyDirect).

Regional hubs will also hold contact details of the local media for the relevant courts within the region and, where appropriate, the local media must be notified too.

Will the parties be able to ask the court not to make the pilot order?

Yes. Any such request supported by the reasons for it should be included in the application, or be made by making an application within the proceedings. If such application is made before any pilot order is made, notice of it does not have to be given to the media unless the court otherwise directs.

Is there any type of Court of Protection proceedings excluded from the pilot?

Yes. Contempt proceedings and cases relating to serious medical cases are not covered by the pilot. In addition, cases when orders have been made before the pilot commenced are excluded.

When the pilot applies to a case, it will effectively change the default position to one where hearings are held in public, thereby allowing members of the media or public to attend.

When judges make initial case management directions, they will issue an order notifying the parties when a hearing or hearings will take place and whether the hearing is to be in public. That order will include the reporting restrictions that are imposed.

Whether a case in is public with reporting restrictions or in private will also be shown on the court lists.

What information should be displayed on the public cause lists?

No information should be published that could lead to the publication of any information that the court has ordered should not be published. The order in each case will define this and they will not all be the same.

This means that the cause lists that are printed for display must not show any such information and will state that the hearing is ‘Public – with reporting restrictions’. In addition, where proceedings are in private, the cause lists should be edited to clearly show that the hearings are ‘not open to the public’. Normally the order will prohibit the publication of any information that identifies P or members of P’s family, where they live or are being cared for. Restrictions on the publication of any other information will vary from case to case.

In what circumstances might the public or certain people be excluded from Court of Protection proceedings?

In deciding this under the pilot the court will have regard in particular to:

  1. the need to protect P or another person involved in the proceedings;
  2. the nature of the evidence in the proceedings;
  3. whether earlier hearings in the proceedings have taken place in private;
  4. whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room;
  5. whether there is any risk of disruption to the hearing if there is general public access to it; and
  6. whether, if there is good reason for not allowing general public access, it would be appropriate or practicable to allow access to accredited media representatives.

Will members of the media have access to case papers?

Yes. Unless the court otherwise orders, on request, accredited members of the media who attend the hearing will be provided with anonymised position statements, statements of issues, chronologies and skeleton arguments.

Can the media or general public obtain copies of judgments or orders made at a hearing in public?

Yes. Under rule 17(1) of the CoP Rules 2007 anyone can obtain a copy of any judgment or order made in public. If there is a copy on the court file, this may be provided subject to the standard fee. When providing a copy of an order or a transcript of a judgment in a pilot case, you should check that they contain a statement that they are subject to the reporting restrictions order.

Can the media or general public obtain the other documents used in a hearing in public?

Accredited media who attend the hearing will usually be given copies of anonymised position statements, statements of issues, chronologies and skeleton arguments on request (see above). The Court may also direct that copies of documents be provided to anyone else who attends the hearing.

If anyone else who is not a party to the proceedings, and did not attend the hearing, wishes to obtain documents used in the proceedings, they must apply on form COP9 and COP24 and set out the reasons why they require copies (see rule 17(2) CoP Rules 2007).

Can the media or general public obtain copies of orders or other documents used in a hearing in private?

No. If the hearing is in private, and the court makes no order about publishing information, anyone who is not a party to the proceedings wishing to obtain copies of any documents must apply on form COP9 and COP24 and set out the reasons why they require copies (see rule 17(2) COP Rules 2007).

What information can we tell the media/public about the hearing?

You can provide the information contained in the reporting restrictions order and the cause list.

Visit judiciary.gov.uk to access a full copy of the draft Pilots as they may be subject to further changes before coming into force.